[Cite as Berdysz v. Boyas Excavating, Inc., 2017-Ohio-530.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104001
JOHN C. BERDYSZ, ET AL.
PLAINTIFFS-APPELLEES
vs.
BOYAS EXCAVATING, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-826410
BEFORE: Jones, P.J., E.T. Gallagher, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 16, 2017 ATTORNEYS FOR APPELLANT
Timothy J. Riley Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103
Matthew B. Barbara Gregory G. Guice Holly M. Wilson Reminger Co., L.P.A. 1400 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
For Boyas Excavating, Inc.
Timothy J. Weyls Weyls, Peters & Chuparkoff, L.L.C. 6505 Rockside Road, Suite 105 Independence, Ohio 44131
For John C. Berdysz
Edward W. Cochran Cochran & Cochran 20030 Marchmont Road Shaker Heights, Ohio 44122
Thomas J. Connick Connick Law, L.L.C. 25550 Chagrin Boulevard, Suite 101 Beachwood, Ohio 44122
David Mullen Weltman Weinberg & Reis Co., L.P.A. 323 West Lakeside Avenue, 2nd Floor Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, the city of Garfield Heights (“Garfield Heights”),
appeals from the trial court’s December 2015 judgment granting the plaintiffs-appellees’
motion to certify this case as a class action. We affirm.
Procedural History and Facts
{¶2} The plaintiffs-appellees in this action are John Berdysz, Colette Berdysz, John
Drab, Marianne Eckhoff, Patricia Masa, Alberta Krupp, and Kathleen Tucciarelli. They
are all residents of Garfield Heights and the gravamen of their complaint is that noxious
odors in their neighborhood affected the use and enjoyment of their properties.
{¶3} In addition to Garfield Heights, numerous other defendants were named in the
suit. The plaintiffs’ claims against the defendants revolve around the development of
property in Garfield Heights that previously was the site of two landfills from the 1960s
through the 1980s. In 2002, the waste materials on the property were disturbed as
developers explored ideas for using the property. In 2005, the property was developed
into the City View Center shopping center (“the City View property”).
{¶4} Residents in the neighborhood immediately surrounding the City View
property complained of odors, and as a result, the Ohio Environmental Protection Agency
(“EPA”) issued orders in March 2005 obligating Garfield Heights to take actions
necessary for full compliance with environmental regulations. As of November 2014,
most of the tenants in the shopping center had vacated; for example, Walmart closed in 2009 because of “landfill gas intrusion.”
{¶5} The plaintiffs originally filed suit in 2009; there were over 85 named plaintiffs
in the action. See Baczowksi v. Boyas Excavating, Inc., Cuyahoga C.P. No.
CV-09-712005. By 2013, only two plaintiffs remained in the action, and they voluntarily
dismissed the case. The action was refiled in 2014 and is the case at hand. Five
plaintiffs filed the action, and an amended complaint was filed adding two more plaintiffs.
{¶6} The plaintiffs filed a motion to certify the case as a class action, and the trial
court held a hearing on the motion. The issue was also extensively briefed by the parties.
At the time of the hearing, all of the defendants except Garfield Heights were in
settlement negotiations with the plaintiffs, and the city therefore was the only defendant
who argued against class-action certification.
{¶7} The neighborhood that the plaintiffs sought to be included in the class was the
neighborhood immediately surrounding the City View property, and was defined as
follows:
the intersection of Transportation Boulevard and Antenucci Boulevard as the northwest point to the intersection of Antenucci Boulevard and Turney Road as the northeast point, south down the center line of Turney Road, and bounded on the south by the full length of Maple Leaf Drive.
{¶8} Further, the borders were defined as follows:
(1) to the west, the City View property itself; (2) to the north, an east-west section of Interstate 480, bounded by hills and barrier and walls; (3) to the west, Turney Road, a major north-south thoroughfare; and (4) to the south, an area of land, south of Maple Leaf Drive.
{¶9} As to the members of the class, the plaintiffs sought to have it include “all persons and entities (including trustees) that own or reside in a home within the class area
which home was purchased by the class member prior to December 31, 2002.” There
were approximately 220 homes in the proposed class area that were purchased prior to
December 31, 2002. The plaintiffs presented a list of the homeowners to the trial court.
{¶10} The plaintiffs also submitted an expert’s report from Golder Associates
(“Golder”) for the trial court’s consideration. The report indicates that a
primary source of odors from the [landfill] facility is likely from the direct discharge of collected gas from the blower units located near the fuel station, the unfinished building in the northwest corner of the site and the blowers used to extract and vent gas from beneath the shopping center buildings.
The report further indicates that “[w]ind direction information * * * indicates a normal
southwesterly wind that would potentially carry odors from these discharge locations
towards the residences located northeast of the property,” and that the “landfill odors
would be expected to constitute a nuisance to the surrounding area and the homeowners.”
{¶11} Additionally, the plaintiffs submitted the affidavit of Craig Cantrell, a
licensed Ohio real estate agent and broker and owner of Chestnut Hill Realty. For the
purpose of the averments in his affidavit, Cantrell assumed the plaintiffs’ claim of noxious
odors in their proposed class area to be true. Cantrell averred as follows:
If in a residential neighborhood, there are noxious odors which have continued for a long period of time, a reasonable buyer will be willing to pay only a diminished price. Consequently, it is my opinion, to a reasonable degree of certainty, that the homes in the “class area” can be sold by a reasonable seller to a reasonable buyer only at a price of 30-35% below what these homes would sell for in the open market if there were no noxious odors; and that diminution in price will apply to the entire class area.
{¶12} The plaintiffs also submitted the affidavit of Lance Traves (“Traves”), an expert on prevailing winds and odor migration. Traves averred that “because the class area
is so small and in such close proximity to the subject landfill, the odors emitted from the
landfill that are subject to the prevailing winds would be expected to be distributed over
the entire class area and detectable to all those in the class area.”
{¶13} Another expert report, prepared by GC Environmental, Inc. (“GCE”), was
submitted by the city for the trial court’s consideration. In its report, GCE contradicted
the findings of Golder, the plaintiffs’ expert, and found any odors on the City View
property to be “de minimis,” did not detect any odors in the proposed class area, and
concluded that it is “unreasonable to suggest that landfill gas would have been able to
migrate to the [class] neighborhood.”
{¶14} At the hearing, testimony was taken from one of the plaintiffs’ attorneys
about how he determined the potential class members. Further, one of the plaintiffs and
class representatives, Kathleen Tucciarelli, testified about her experience living in the
neighborhood with the alleged noxious odors. After the hearing, the trial court granted
the plaintiffs’ motion and issued findings of fact and conclusions of law.
{¶15} Garfield Heights now presents the following sole assignment of error for our
review: “The trial court committed reversible error in certifying a class where the
plaintiffs failed to satisfy both the explicit and implicit requirements of Civ.R. 23.”
Law and Analysis
{¶16} Generally, litigation is conducted by and on behalf of only the individually
named parties; a class action is an exception to the rule. Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.3d 1224, ¶ 25. To fall within the
exception, the party bringing the class action must affirmatively demonstrate, by a
preponderance of the evidence, that each requirement of Civ.R. 23 has been satisfied.
Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999
N.E.2d 614, paragraph three of the syllabus.
{¶17} A trial court must conduct a “rigorous analysis” when determining whether to
certify a class, and may grant certification only after resolving all relevant factual disputes
and finding that sufficient evidence proves that all of the requirements have been satisfied.
Id. at paragraph one of the syllabus. In resolving a factual dispute, a court may examine
the underlying merits of the claim as part of its rigorous analysis, but only to the extent
necessary to determine whether the requirements of the rule are satisfied. Id. at
paragraph two of the syllabus.
{¶18} The trial court has broad discretion in determining whether to certify a class
action, and that decision will not be disturbed on appeal absent an abuse of discretion.
Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998).
Civ.R. 23
{¶19} Civ.R. 23(A) sets forth the requirements that must be satisfied before the trial
court may certify a class action: (1) the class is so numerous that joinder of all members
is impracticable, (2) there are questions of law or fact common to the class, (3) the claims
or defenses of the representative parties are typical of the claims or defenses of the class,
and (4) the representative parties will fairly and adequately protect the interests of the class.
{¶20} Further, Civ.R. 23(B) provides that a class action may be maintained if any
of the following apply:
(1) prosecuting separate actions by or against individual class members would create a risk of:
(a) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(b) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(a) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.
{¶21} Thus, to be eligible for class certification pursuant to Civ.R. 23, the plaintiffs must establish the following seven prerequisites: (1) an identifiable and unambiguous class
must exist; (2) the named representatives of the class must be class members; (3) the class
must be so numerous that joinder of all members of the class is impractical; (4) there must
be questions of law or fact that are common to the class; (5) the claims or defenses of the
representative parties must be typical of the claims and defenses of the members of the
class; (6) the representative parties must fairly and adequately protect the interests of the
class; and (7) one of the three requirements of Civ.R. 23(B) must be satisfied. Stammco,
L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 926 N.E.2d 292, ¶
6. The party seeking class certification bears the burden of demonstrating that the
requirements of Civ.R. 23(A) and (B) are met. Hoang v. E*trade Group, 151 Ohio
App.3d 363, 2003-Ohio-301, 784 N.E.2d 151, ¶ 14 (8th Dist.).
{¶22} The trial court found that the plaintiffs met all the requirements under Civ.R.
23(A) for class certification and further found, under Civ.R. 23(B), that the “questions of
law and/or fact common to the class predominate over any questions affecting only
individual members” and that a class action is “superior to other available methods to
fairly and efficiently adjudicate this controversy.” For the reasons set forth below, the
trial court’s decision to certify the class was not an abuse of discretion.
Identifiable Class with Named Representative Members of Class
{¶23} As mentioned, the plaintiffs proposed that the class consist of “all persons
and entities (including trustees) that own or reside in a home within the class which home
was purchased by the class member prior to December 31, 2002.” The class area was defined as the
intersection of Transportation Boulevard and Antenucci Boulevard as the northwest point to the intersection of Antenucci Boulevard and Turney Road as the northeast point, south down the center line of Turney Road, and bounded on the south by the full length of Maple Leaf Drive.
And the borders were delineated as the
neighborhood immediately east of the City View property, with borders (1) to the west, the City View property itself, (2) to the north, an east-west section of Interstate 480, bounded by hills and barrier and walls, (3) to the west, Turney Road, a major north-south thoroughfare, and (4) to the south, an area of land, south of Maple Leaf Drive.
There were approximately 220 homes in the proposed class area that were purchased prior
to December 31, 2002.
{¶24} Upon review, the plaintiffs’ proposal was specific as to the people, time
frame, and location, and was buttressed by the map of the area and the list of people in the
area. Further, we are not persuaded by the city’s contention that the proposed class was
too ambiguous because not all the homeowners reside in the homes (i.e., they rent them
out). The identities of the class members do not have to be specified in order to
demonstrate that a class actually exits; rather, the class definition must be precise enough
to “permit identification within reasonable effort.” Warner v. Waste Mgt., Inc., 36 Ohio
St.3d 91, 96, 521 N.E.2d 1091 (1988). The class definition here meets that requirement.
Moreover, the trial court has determined that, because of the class-wide settlement with the
other defendants in this matter, it will not have any administrative burden in determining
whether any particular person is a member of the class. Further, there are named
representatives of the class, a point not in contention. {¶25} In light of the above, the trial court did not abuse its discretion by finding
that an identifiable, unambiguous class with named representatives exists.
Numerosity
{¶26} In regard to the numerosity requirement, there is no specific number to meet
the requirement and it must be decided on a case-by-case basis, but it has been noted that if
a class has more than 40 people, the numerosity requirement has usually been satisfied.
Id. at 97, citing Miller, An Overview of Federal Class Actions: Past, Present and Future,
22 (2 Ed.1977).
{¶27} Here, the plaintiffs presented evidence that there were over 200 residences in
the proposed class area. Further, the plaintiffs’ expert, Traves, averred in an affidavit
that the odors emanating from the landfill area were subject to the prevailing winds and
would have been distributed and detectable to the entire class area. On this record, the
trial court did not abuse its discretion in finding that the numerosity requirement was met.
Common Questions of Law or Fact
{¶28} Civ.R. 23(A)(2) requires the presence of “questions of law or fact common
to the class.” Courts generally have given this requirement a permissive application.
Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 202, 509 N.E.2d 1249 (1987). Thus, there
need not be a complete identity of claims among all class members, but a plaintiff seeking
class action certification must make some threshold showing of a “common nucleus of
operative facts.” Miles v. N.J. Motors, 32 Ohio App.2d 350, 356, 291 N.E.2d 758 (6th
Dist.1972). In other words, common facts alone are not sufficient unless they have legal significance.
“If there is a common liability issue, [Fed. R. Civ. P.] 23(a)(2) is satisfied. Similarly if there is a common fact question relating to negligence, or the existence of a contract or its breach, or a practice of discrimination, or misrepresentation, or conspiracy, or pollution, or the existence of a particular course of conduct, the Rule is satisfied.”
Warner at id., quoting Miller, (2 Ed.1977) at 24.
{¶29} “Commonality may be found where the basis for liability is common to the
proposed class or where a common factual question exists on issues of negligence, breach
of contract, illegal practice, or other applicable causes of action[.]” (Citations omitted.)
Grant v. Becton Dickinson & Co., 10th Dist. Franklin No. 02AP-894, 2003-Ohio-2826, ¶
36; see also Hansen v. Landaker, 10th Dist. Franklin Nos. 99AP-1191 and 99AP-1192,
2000 Ohio App. LEXIS 5674 (Dec. 7, 2000) (indicating that commonality requires a
common issue of liability.)
{¶30} The city contends that individual differences in certain issues among the
proposed class defeats the commonality requirement. We disagree. The balancing test
of common and individual issues is qualitative, not quantitative. In re Am. Med. Sys.,
Inc., 75 F.3d 1069, 1080 (6th Cir.1996). Thus, there need be only a single issue common
to all members of the class, and the “‘fact that questions peculiar to each individual
member of the class member remain after the common questions of the defendant’s
liability have been resolved does not dictate the conclusion that a class action is
impermissible.’” Musial Offices, Ltd. v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No.
99781, 2014-Ohio-602, ¶ 32, quoting Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir.1988).
{¶31} Upon review, the plaintiffs here alleged common questions of law and fact,
and we are required to deem the allegations in their complaint as true. We therefore find
that the trial court did not abuse its discretion in finding that they fulfilled the commonality
requirement.
Predominance/Superiority
{¶32} In addition to finding that the class shares common questions of law and/or
fact under Civ.R. 23(A), the trial court also found, as mentioned, that under Civ.R. 23(B),
those common questions “predominate over any questions affecting individual members”
and that a class action is “superior to other available methods to fairly and efficiently
adjudicate this controversy.”
{¶33} The predominance test is an attempt to achieve a balance between the value
of allowing individual actions to be instituted so that each person can protect his or her
own interest and the economy achievable by allowing a multiple party dispute to be
resolved as a class action. Schmidt v. Avco Corp., 15 Ohio App.3d 81, 87, 472 N.E.2d
721 (1st Dist.1984). For common questions of law or fact to predominate, “‘it is not
sufficient that such questions merely exist; rather, they must present a sufficient aspect of
the case.’” Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373,
2013-Ohio-4733, 999 N.E.2d 614, ¶ 30, quoting Marks, 31 Ohio St.3d at 204, 509 N.E.2d
1249. They must also be capable of resolution for all members in a single adjudication.
Cullen at id. {¶34} Whether a class action is the superior method of adjudication requires a
comparative evaluation of other available procedures to determine if the judicial time and
energy involved would be justified. State ex rel. Davis v. Pub. Emp. Retirement Bd., 111
Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 28. The necessity for a class action
is a valid consideration for the trial court. Id. at ¶ 32-33. “[T]he ‘need’ for class action
treatment * * * may be considered a vital, if not determinative, consideration as need
inevitably relates to the problems of superiority, fairness, and efficiency.” Id. at ¶ 32,
quoting Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 346 (10th Cir.1973).
{¶35} The trial court did not abuse its discretion by finding predominance and
superiority. According to the city, this case is a “mass toxic tort case” and the plaintiffs
cannot show that common questions predominate. The city cites Sterling, 855 F.2d 1188,
in support of its contention. The plaintiffs in Sterling sought damages for personal
injuries and property damage they suffered as a result of the defendant disposing of
ultrahazardous chemicals at a landfill located near the plaintiffs’ residences. The Sixth
Circuit stated the following in addressing the issue of class certification:
In complex, mass, toxic tort accidents, where no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and individual issues outnumber common issues, the district court should properly question the appropriateness of a class action for resolving the controversy. However, where the defendant’s liability can be determined on a class-wide basis because the cause of the disaster is a single course of conduct which is identical for each of the plaintiffs, a class action may be the best suited vehicle to resolve such a controversy.
Id. at 1197. {¶36} In affirming the district court’s certification of a class action, the Sixth
Circuit reasoned as follows:
In the instant case, each class member lived in the vicinity of the landfill and allegedly suffered damages as a result of ingesting or otherwise using the contaminated water. Almost identical evidence would be required to establish the level and duration of chemical contamination, the causal connection, if any, between the plaintiffs’ consumption of the contaminated water and the type of injuries allegedly suffered, and the defendant’s liability. The single major issue distinguishing the class members is the nature and amount of damages, if any, that each sustained. To this extent, a class action in the instant case avoided duplication of judicial effort and prevented separate actions from reaching inconsistent results with similar, if not identical, facts. The district court clearly did not abuse its discretion in certifying this action as a Rule 23(b)(3) class action. However, individual members of the class still will be required to submit evidence concerning their particularized damage claims in subsequent proceedings.
Id.
{¶37} Here, the plaintiffs allege that noxious odors emanating from the City View
property have resulted in a nuisance that interferes with the peaceful and useful enjoyment
of their properties, and has diminished the value of their properties. Further, the class
area is relatively small and is well defined. Their claim applies equally to all the class
members and is “sufficiently cohesive to warrant adjudication by representation.”
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689
(1997). Additionally, the trial court determined that, because it had already approved a
class-wide settlement with the other defendants, it would not encounter any administrative
burden in determining whether a particular person is a member of the class. The trial court
did not abuse its discretion in its findings.
Typical Claims or Defenses {¶38} According to the city, the plaintiffs failed to demonstrate typicality because
their claims require proof of individualized causation. The typicality requirement equates
to a finding that the “‘named plaintiffs’ claims are typical, in common-sense terms, of the
class, thus suggesting that the incentives of the plaintiffs are aligned with those of the
class.’” Musial Offices, 8th Dist. Cuyahoga No. 99781, 2014-Ohio-602 at ¶ 24, quoting
Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). Thus, the “requirement for typicality is met
where there is no express conflict between the class representatives and the class.”
Hamilton, 82 Ohio St.3d at 70, 694 N.E.2d 442.
{¶39} The plaintiffs here claim that the city created and failed to mitigate or abate
the nuisance of the emission of noxious odors over the class area, thereby causing the
plaintiffs’ damages. The answer to this issue will resolve all of the plaintiffs’ claims.
Additionally, the city has raised defenses relating to the enforceability of federal court
orders regarding the City View property. Resolution of the plaintiffs’ claims and the
city’s defenses will apply equally to the class area. Thus, the plaintiffs’ claims met the
typicality requirement, and the trial court did not abuse its discretion in so finding.
Representation
{¶40} Finally, the trial court did not abuse its discretion by finding that the class
will be fairly represented. The representative plaintiffs all own homes in the class area,
and plaintiffs’ counsel adequately identified and investigated the potential claims in this
case. Further, counsel has experience in handling class actions and in the types of claims
alleged here. Conclusion
{¶41} After conducting a rigorous analysis, which included an evidentiary hearing,
the trial court properly found that the plaintiffs met the requirements under Civ.R. 23 for
class-action certification. The trial court, therefore, did not abuse its discretion in
certifying this case as a class action. The city’s assignment of error is overruled.
{¶42} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and SEAN C. GALLAGHER, J., CONCUR